KAMINSKI ET AL.
v.
STATE
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Kaminski and Isaacs appealed their conviction for assault with intent to commit murder, challenging the trial court's denial of their motion to quash the information on procedural grounds and arguing the evidence was insufficient. The Florida Supreme Court affirmed, holding that defendants waived objections to the information by failing to raise them before or at arraignment, and that the evidence was sufficient to sustain the verdict.
The trial court did not abuse its discretion in denying the motion to quash, as defendants had waived all objections to the information by failing to raise them before or at the time of their initial plea on April 17, 1951. The reversal and remand for trial error restored defendants to the point where that error occurred, not to a point before their guilty plea, and therefore did not revive the right to challenge the information. The evidence was also sufficient to sustain the verdict.
“If the defendant does not move to quash the * * * information before or at the time he pleads thereto he shall be taken to have waived all objections which are grounds for a motion to quash.”
Establishes the rule that failure to timely raise defects in an information constitutes waiver, supporting the court's affirmance.
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Join FLexlaw to unlock all legal intelligenceKaminski and Isaacs were charged with assault with intent to commit murder by information filed March 12, 1951, though it was not sworn to until March…
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SEBRING, Justice.
Kaminski and Isaacs were tried and found guilty of assault with intent to commit murder. Judgment and sentence were entered and the defendants appealed.
The information in the case, which appears to have been sworn to by the County Solicitor on March 13, 1951, was filed in the Criminal Court of Record of Dade County on March 12, 1951. Subsequently, the defendants entered a plea of not guilty to the charge contained in the information and went to trial. The jury returned a verdict against them and judgment was rendered, from which the defendants appealed. This Court reversed the judgment for procedural errors in respect to the admission of evidence and ordered a new trial. Kaminski v. State, Fla., 63 So. 2d 339.
After our mandate went down the case was set for the second trial on the information. At the beginning of the trial the defendants filed their motion for leave to withdraw their pleas of not guilty and to file a motion to quash the information on the ground that “it affirmatively appears from the records * * * that the said Information * * * filed * * * on the 12th day of March, 1951 * * * was not sworn to by the County Solicitor * * until the 13th day of March, 1951, and * * after the swearing * * * was not refiled.”
The defendants have assigned as error the denial of the motion by the trial court.
It is provided by section 909.01, Florida Statutes 1951, F.S.A., that “Either prior to or upon being arraigned, the defendant shall, unless the court grants him further time, either move to quash the * * * information or plead thereto, or do both. If he moves to quash, without also pleading, and the motion is withdrawn or overruled, he shall immediately plead.”
Section 909.06, Florida Statutes 1951, F. S.A., provides, in part: “If the defendant does not move to quash the * * * information before or at the time he pleads thereto he shall be taken to have waived all objections which are grounds for a motion to quash. * * * ”
As appears from the record, the information was filed in the case on March 12, 1951. On April 17, 1951, the defendants were arraigned and pleaded not guilty. The first time any objection was raised as to the propriety of the information was approximately 28 months after it had been filed, after this Court had reversed the judgment for procedural errors and had remanded the case for a new trial. Since the judgment of reversal was predicated upon error in the course of trial, “the effect of the reversal [was to restore] the accused to the point where that error was committed,” at the point of commencement of trial' upon the plea of not guilty theretofore entered. Ex parte Livingston, 116 Fla. 640, 156 So. 612. It cannot be said that the court abused its discretion in refusing at that point to permit defendant to withdraw his plea and filed a motion to quash. Section 909.06, supra. Bryan v. State, 41 Fla. 643, 26 So. 1022; Haddock v. State, 141 Fla. 132, 192 So. 802; Shumake v. State, 90 Fla. 133, 105 So. 314; Hays v. State, 100 Fla. 734, 130 So. 6. See also Johnson v. State, 58 Fla. 68, 50 So. 529; 27 Am.Jur., Ind. and Inf., section 188, n. 14 and 15; 42 C.J. S., Indictments and Informations § 331.
The only other question on the appeal is whether the evidence was sufficient to sustain the verdict and judgment. We are of the view that this question must be answered in the affirmative.
The judgment appealed from should be affirmed.
It is so ordered.
ROBERTS, C. J., TERRELL, J., and ROGERS, Associate Justice, concur.
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Citator
Cited By (17 total)
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Champlin v. State, 122 So. 2d 412 (Fla. 2d DCA 1960)…tions 909.01 and 909.06, F.S.A.; Bryan v. State, 41 Fla. 643, 26 So. 1022; Sawyer v. State, 94 Fla. 60, 113 So. 736; State ex rel. Gibbs v. Circuit Court of Eleventh Judicial Circuit, 140 Fla. 378, 191 So. 699; see also Kaminski v. State, Fla. 1954, 72 So. 2d 400. The judgment of the trial court is affirmed. ALLEN, C. J., and SHANNON, J., concur.…
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State v. Adjmi, 170 So. 2d 340 (Fla. 3d DCA 1964)…viction and the remand for new trial left the case standing as if the judgment had not been rendered, and restored the cause to the position it held before the first trial. Ex parte Livingston, 116 Fla. 640, 156 So. 612; Kaminski v. State, Fla.1954, 72 So. 2d 400. By remanding the cause for new trial, the Supreme Court necessarily treated the initial information as being sufficient for prosecution of one, but only one, of the larcenies provable thereunder as the state should elect. But it was made equally c…
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Griffith v. State, 654 So. 2d 936 (Fla. 4th DCA 1995)…nds us, when a conviction is reversed it is a nullity, and the effect of the reversal is to restore the defendant to the point in the proceedings where the error was made. Ex Parte Livingston, 116 Fla. 640, 156 So. 612 (1934); and Kaminski v. State, 72 So. 2d 400 (Fla.1954), cert. denied, 348 U.S. 832, 75 S.Ct. 55, 99 L.Ed. 656 (1954). Hence the convictions being reversed — namely the charges in counts I, II, IV, VI and VII of the Information — are void, and the state must begin anew as regards them. Because…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kaminski v. State, 63 So. 2d 339 (Fla. 1952)
- Haddock v. State, 141 Fla. 132 (Fla. 1939)
- Gadsden D. Bryan v. State, 41 Fla. 643 (Fla. 1899)
- Ex Parte: Archibald Livingston, 116 Fla. 640 (Fla. 1934)
- Johnson v. State, 58 Fla. 68 (Fla. 1909)
- Shumake v. State, 90 Fla. 133 (Fla. 1925)
- Delma Hays v. State, 100 Fla. 734 (Fla. 1930)